Rojas v Tandon

[*1] Rojas v Tandon 2021 NY Slip Op 50001(U) Decided on January 4, 2021 Supreme Court, Kings County Edwards, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 4, 2021
Supreme Court, Kings County

Paolo Rojas, Plaintiff,

against

Dr. Sapna Tandon and Dr. Robert Hosty, Defendants.



500205/2020



Plaintiff is represented by Harry Organek, Esq. of the Law Office of Harry Organek

Dr. Sapna Tandon is represented by James B. Rosenblum, Esq. of Rosenblum Newfield, LLC
Genine D. Edwards, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered

Notice of Motion and Affirmation in Support 1

Affirmation in Opposition 2

Affirmation in Reply 3

In this action to recover damages for personal injuries, defendant Dr. Sapna Tandon ("Dr. Tandon") moves for an Order pursuant to CPLR 3211, dismissing the complaint due to plaintiff's failure to comply with CPLR 3012-a, requiring that a certificate of merit accompany the complaint, and because the claim is barred by CPLR 208, requiring an action for medical malpractice to be commenced within ten years of the alleged malpractice.

The plaintiff commenced this action on January 6, 2020. Plaintiff alleged, inter alia, that on the date of her birth, March 15, 1999, after her delivery and during her transfer from the delivery room, Dr. Tandon caused her to suffer severe and permanent injuries when he tossed her to another physician.

The premise of Dr. Tandon's argument in support of dismissal is the contention that this action sounds in medical malpractice. Conversely, plaintiff asserts that this is a matter of ordinary negligence.

"The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts." Rabinovich v. Maimonides Medical Center, 179 AD3d 88, 113 N.Y.S.3d 198 (2d Dept. 2019); See Giordano [*2]v. Scherz, 99 AD3d 968, 953 N.Y.S.2d 135 (2d Dept. 2012); Russo v. Shah, 278 AD2d 474, 718 N.Y.S.2d 74 (2d Dept. 2000). Generally, a cause of action will be deemed to sound in medical malpractice when the challenged conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician. See Rabinovich, 179 AD3d 88; Jeter v. New York Presbyterian Hospital, 172 AD3d 1338, 101 N.Y.S.3d 411 (2d Dept. 2019). "[W]hen the gravamen of the action concerns the alleged failure to exercise ordinary and reasonable care to ensure that no unnecessary harm befell the patient, the claim sounds in ordinary negligence." D'elia v. Menorah Home and Hosp. for Aged and Infirm, 51 AD3d 848, 859 N.Y.S.2d 224 (2d Dept. 2008); See Rabinovich, 179 AD3d 88.

In the instant matter, Dr. Tandon submits that there are standards, customs and practices regarding professional conduct in a delivery room. But he only provides an excerpt from the Hopkins Medicine website that states, in part, that warm blankets and heat lamps can provide warmth for newborns who are generally wet from amniotic fluid. Without proffering one scintilla of evidence regarding the transfer of a newborn from one person to another in the delivery room, Dr. Tandon's bald assertion misses the mark. Indeed, the allegation of tossing a newborn infant into the arms of another physician is not the result of medical advisement but is an act that can be assessed by the common everyday experience of lay persons. See Rabinovich, 179 AD3d 88; Jeter, 172 AD3d 1338; Giordano, 99 AD3d 968; D'elia, 51 AD3d 848; Playford v. Phelps Memorial Hosp. Center, 254 AD2d 471, 680 N.Y.S.2d 267 (2d Dept. 1998). Consequently, as this is not an action sounding in medical malpractice, CPLR 3012-a is inapplicable. See CPLR 3012-a; Rabinovich, 179 AD3d 88; Jeter, 172 AD3d 1338.

Furthermore, this suit is timely since it was commenced on January 6, 2020, which is prior to plaintiff's 21st birthday and within three years of the expiration of plaintiff's infancy. See CPLR 208; See also MP v. Davidsohn, 169 AD3d 788, 93 N.Y.S.3d 683 (2d Dept. 2019); Baron v. Brown, 101 AD3d 915, 957 N.Y.S.2d 237 (2d Dept. 2012).

Accordingly, defendant's motion to dismiss is denied in its entirety.

This constitutes the Decision of this Court.

Dated: January 4, 2021

Hon. Genine D. Edwards, J.S.C.